NAGE Wins Case at MSPB Restoring Member to Job with Months of Back Pay and Interest
Administrative Judge Glen D. Williams in the Western Regional Office of the Merit Systems Protection Board has ordered the Department of the Navy to restore a NAGE member (Local R12-35) to his position with months of back pay and interest after reversing the agency's decision to terminate the employee. The member, who was successfully represented by NAGE attorney Ali Sachani, was wrongfully terminated from his job as a maintenance worker at Naval Base Coronado (San Diego).
"I'm obviously very pleased with the outcome of this case," said Sachani. "This member has been vindicated and will be returned to work with the pay he rightfully should have received."
The Appellant was charged with “unauthorized removal of government property.” On a specified date a spool of bare No. 1 copper wire was found missing from a government vehicle. The charge letter asserted that the Appellant was seen balancing a spool of bare No. 1 copper wire on a forklift at approximately 2:30 p.m. on the same date. The Administrative Judge found that the charge was vague and could be construed in different ways, either removing the spool from the base or removing the spool from the truck, but still on the base.
Regardless, the Administrative Judge found that the Agency could not meet its burden under either construction, as the only evidence linking the Appellant to the missing spool of copper wire was the testimony of another employee. The employee, the Agency’s primary witness, testified at the hearing that he was about five feet behind the forklift and did not see the copper spool itself, only the top of a spool. He also testified that he saw wire sticking out of the spool that was much smaller than copper No. 1.
The Appellant presented evidence that he was using the forklift on the day in question to move a pallet of sheet metal, and denied seeing the Agency’s witness at the time. Based on the evidence presented the Administrative Judge found it “inherently improbable that the appellant would have removed the spool of wire…” and found the Agency witness’ testimony uncredible. The AJ found that the Agency did not prove its charge by a preponderance of the evidence.